Chief Mpepo (Also known as Ackson Chilufya Mwamba) v Senior Chief Mwamba (Also known as Paison Chilekwa Yambayamba) (APPEAL NO. 87 OF 2006; Supreme Court Judgment No. 25 of 2008) [2008] ZMSC 170 (1 August 2008)

Supreme Court Judgment No. 25 of 2008 APPEAL NO. 87 OF 2006 1 INll--IE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Civil Jµrisdiction) BETWEEN: CH1EFMPEPO (Al.~o bown flS Ackson Chilufya Mwamba) APPELLANT AND SENIOR CHIEF MWAMBA (Also known as Paison Chilekwa Yarnbayainba) , RESPONDENT ~- qN@! ~N P ~_,MM: LEWANIKA, D. C .. J~;-@UTENGI AND SICOMBA;l'. J. S. On the 1 -August, 2006 and 1st Au~st, 2008 .. .:~:..:n· -,·-·· :-n .': . '.! st For the Appellant: Mr. S. S. Zulu, S. C., of Zulu and Co~pany _Ml:... J?..-M... Mv:unga,-S. C., of Mvunga Associates For the Respondent: Mr. B. Mutale, S. C., of Ellis and Company Assisted by Mr. L. Kalaluka I I ..... JUDGMENT SILO MBA, J~ S., deliv-ered the judgment of the Court. · delivery of this judgment. The delay was, unfortunately, due to the heavy work schedule. When we heard this appeal, the Hon. Deputy Chief justice, Mr. Justice David M; •~ .. ' ·"•'<¥-1-"' ' " ' •• - Lewanika, was a member of the panel but he passed on before the judgment was ready. This judgment is, t4erefore, by the 1.r1ajority. This appeal is against the judgnwnt of the Hig.b. Court dated the 31 st day of March, 2006 in which the learned trial Judge declared the respondent as the rightful and J2 legitimate candidate for ascendancy to the throne of Paramount Chief Chitimukulu of the Bem&a people. From now on, we shall refer to the appellant as the defendant and the respondent as the plaintiff, which designations they were in the Court below. ··· .-· _T}:!e--evidenee in_ support of the plaintiffs claim for a cl~slaration t~i;tt he was tj:}e rightful and legitimate heir to the throne_ of Paramount Chief Chitimukulu was that both tht,h:Ph1intiff and-the defendant traced their lineage to Chieftainess Chandamukulu. For · -r,-n,:<;: ; to · -aspire·. to ,.1 .. -eoorne Paramount · Chief Chitimukulu- unaer· ·chandamukulu~s , • ·. . / , , I , , .~ • • ~ .~ ' - , Chieftainship, oas:~.had to start as Chief Mpepo, then move to Chief Nkolemfwnu and • ,:,,.• .1~ -~?~#-;.~ ·. • !(-· - ,;tb.en,;~~».iPr .. Chief M,wamba in that order. The foregoing succession line was called the . "Kasama side." Once a candidate had been through the "Kasama side", he was considered to have enough experience to become Paramount Chief Chitimukulu. The other line of succession to the vacant throne of· Paramount Chief Chitimukulu, . according to the plaintiff's evi deuce, was the "Chinsali side", under Chieftainess Muk.ukamfomu. Under this line ·ofsuccession, one had to begin as. Chief Chewe then move to Chief Chikwanda and then to Senior chief Nkula in that order. The - l:lJ11T,, ,;1;"; sthere was.ai:,v,acancy in the throne of Chitimukulu the successor was either the incumbent S.e11ior Chief Mwamba or Senior ChiefNkula. ..... -~·. - ·- - ., '- ~ -!.t}·!~·;·. ' I u._, The further evidence was that at the time the succession wrangles leading to these proceedings started, the throne of Chitimukulu was vacant and that there was no contender from the ''Chinsali side" because there was nobody in the position of Senior ChiefNkula. As for the "Kasama side", the evidence was that at the time the incumbent J3 Paramount Chief Chitimukul~ died_ the holder of the p<>~iti9n of Sepi,9r Chi.ef Mwa.roba was the plaintiff while the defendant was Chief Mpepo. The evidence of both PWl (Stephen Mubanga Kalimunwa) and PW3 (plaintiff) ..,,,. . · was that the defe,n~ant was a· nephew ·or the plaintiff. Chie:ftainess Chandamukulu, the __ . _ ·.,. Queen Mother, .was . .the blood sister of.the plaintiff and thi biological·mother of·the .:-:.-.··: .. . --· , i.;n, ,~under Bemba traditions fot a nephew (the defendant) to ·ascend to the throne of ....... ctr,. ,.,,,: sv.sr:-.ng_hil~mukulti before his uncle (the plaintiff). The system that had been followed before,' iil'~_,,.j:.'.:·""'' lxli':l'(;.iffi..\\t.t~r~.of SUCCfilj. S,i~ij, . . Was, .aACOrding to PWl, called genealogy or the rule by elders under which seniority was strictly enforced. Because there was no comp.e.tition from Senior Chief Nkula of Chinsali, the Kabilos of Senior Chief Mwamba met and picked the plaintiff to ascend to the throne of " - Gllitimukulu on the 9th July, 2005. The choice was dilly endorsed and approved by ., " Chieftainess Chandamukulu, the Queen Mother and final authority under Bemba tradition. The Queen Mother decreed that the plaintiff, as Senior Chief Mwamba, would 0.--.,· . !'r.,;,_~;~ o1ne the next Chitimukulu and the defendant' was to" taR~o~er from ilit"plafutiff~a~ --·~~-·,1a-'.'"";:i:°j:1 1111 Senior Chief Mwamba. When the Kabilos, including PW2, heard later that Bashilubemba, the traditional councilors, had chosen the defendant to succeed the late .. ~·~.i:r,<';111-~- ,.n;; · Chitimukulu, they were shocked. They protested and made representations to the Government in Kasama but without success. . .. ....,....... . . --,, ... J4 The plaintiff (PW3) ended his testimony by asking the court below to revoke the appointment of his nephew (the defendant) as Chief Chitimukulu and declare him as the legitimate Paramount Chief Chitimukulu. On the other hand_; the-evidence of the defendant ·(DW2) was that in July, 1997 he·. :;r ;<~'' ,,; .. -: ;\•1-was promoted•from Chief Mpepo to Senior Chief Mwamba by Chitimukulu-in.:.council:c"'.:- __ ,_ · · ill;!~c;w. the i~m:S~niqr Gbref Mwamba died. Because the Chitimukulu-in..;. Coundl : .,,,,,,;,,,,'.~,,. ... :.:··,.rn .:-w,1, ,, ;, ,.:m@i.§.@~~he. ~ppointment-ofthe plaintiff as Senior Chief Mwamba; the Government wa:s ._. :'~a:-,!f-t'~:c;~ .:&~:;_, ··-~,:..;.. i~~tesl,u;i,»dthP:r":~~--hi§1fY.&ognition as such and in.his place recognise the defendant. • . tf1e ~Ni~pce was that there was no response froriillie" Government. ;'(:Jr,·., The evidence of DWl (Henry Kanyanta Sosala), who gave his occupation as the .. unrecognized Chief Mpepo, was that whenever there was a, vacancy in the throne of Paramount Chief Chitimukulu, the hereditary councillors, known as Bashilubcmba and , . , none else; bore the responsibility of-selecting a successor to the throne. According-to pl, DWI, the ~ election or appointment of a suitable candidate to the Chitimukulu thro11e was - based on merit, the ability to perform and lead others. Age was not a factor. However, oif':m -~•11'1lT,\,\il;~u.,not happy with his appointment as Chief Chitimukulu because he had .superseded-his .. , . . uncle, the plaintiff. The furthe1· evidence of DWl, DW2 and DW3 was that during the selection process of the successor to the Chitimukulu throne, the ·subject of these proceedings, there were three candidates, namely, Chief Chikwanda of Mpika, the plaintiff and the defendant. Their evidence seemed to suggest that at the time the three names were being - ·-- ;:---- - ... JS considered by Bashilubemba, the plaintiffs official title was Chief Nkolemfumu while - . the defendant's title was Senior Chief Mwamba. However, the correct view seems to . . .. ----· -- . '" suggest that at the time the selection process was on; the plaintiff was Senior Chief Mwat11ba; while the defend'1. Ilt was Chief Mpepo for if this was not so, the_ defendant . would have, at trial, applied to amend his title to read Senior Chief Mwamba. . . , , , . , .,. · : : : ~eH.:cti• - t®-iurther ,evkl~nce was that when the selection process was in motion the ,,~;tv.-,>,Wi~ .. B_~mJ;,il, we!ie•~~nt to pick him up. The two Bashilubemba were;· according- to the defendant, detailed to take him to Chitimukulu village, where the ceremony to install him as Paramount Chief was to take place. However, the installation could not take place ;._ - .· . -- ·- -·· because of.these proceedings and an injunction that had been obtained by the plaintiff from the court. When DW2 ,was cross~examined, he admitted that he was ·me· gazette_4__ ~hief • ,Jf:rl'i~po. He also confirtni d-"$that he was not residing in Chitimukulu village but a t~gu · ,'.!:-:: "'.·,:.-,; _ .,_, ._,·i:"'"'. nn·,,.;_- , allegif(lgr,that she (Chandamukulu) did not have power to appoint and bless the heir to the throne of Chitimukulu. In answer to the question from the trial court, the defendant r_eluctantly confessed that the late Paramount Chief Chitimukulu_never__goLalong w~ll with the respondent. The foregoing evidence, including the other evidence on record, and the submissions of the State counsel were evaluated by the learned trial Judge. In .. ···~ -- · 6-11 determining the dispute, the learned trial Judge posed four questions to which he gave answers before pronouncing himself on the dispute. On the question as to who qualifies to be a chief in Zambia, the learned trial Judge I,; examined Section 3 (l) and (2) of the Chief's Act, Chapter 287 of the Laws and observed that a person can only be a chief if that person has been recognised as such by the President of Zambia under the aforesaid section . . wn:.: ,~ T!~r,y: t;A~ tO.;)Vh:o is eligible to ascend to the vacant throne of Chitimukulu, the. learned .. :· -·• ,,~:-;'d0 ,., or --.w : -,. bte1~~l J~e; after,,ado}'tm.g the works of W. V. Brelsford, entitled The Succession-e_f,- , .•- I -.•· , .. . , , , . custom of succession one has to be a male; must coil1e from the matrilineal sid~ of the _ !amily and n)ust be the most genealogically seni{)f _ltlcmbcr or the family. On the issue of how one can ascend to the throne of Chitimukulu, the learned trial ;·, --.---- -Jqdge observed that the question had presented the most controversy between the ·plaintiff and the defendant. To Slln11ourit the problem prese_nted, toe· learned iii.al fo.dge reviewed :·'.~f:,,,' -" -the evidence given-by the parties and their witnesses on how one can ascend to the vacant · · ,_ ,;,• r:,>i:src--r-·, • . wu: i. _ 1-i~'. W:'i,;:Wi th the assistance of W. V. Brelsford' s works (referred to above) on who takes pr.ec~@~nce in the-succession race, the learned trial Judge concluded that thlf!'\.lnde"tlying prin~iple of suc_<.~ssio_n_was by "ladder climbing" from Chief Mpepo to Chief Nkolemfurnu then to Senior ChiefMwamba and finally to Chitimukulu: By this principle, coupled with the admission by W. V. Brelsford that genealogy and seniority counted in ,, ........,,._ . --~ --_, +1 •. \ .... J7 considering the successor, the learned trial Judge found that the holder of the office of Senior Chief Mwamba was the automatic successor to the vacant throne of Chitimukulu. On the last question, the learned Judge in the Court below asked as to who was re.sponsible for the appointment of a successor to the vacant throne of Chitimukulu. In ,1 " " ' ' , " answering the ·question, the learned trial Judge found that the evidence common to both w" . pruwie~g,,was thabBashilubemba, the traditional Bemba councillors, were the appointing ;;:,,., •.· l'l!J(lW ·- .. ; ~1:t:Tc,_u,.e'.:·JuuA..t 1the.conclt.usionQf the four questions, the.learned Judge posed a,further question rs;Ji!~·~pW.ffruh~yallc,Bashilu.bemba have the power~·~tne appointing au:tib,ority, to demote a .. . · .... :- i . - chief. He posed the foregoing question in view of the evidence of the plaintiff that he ascended to the.throne of Chitimukulu upon the death of the incumbent as he was in line, at the time, by virtue of being Senior Chief Mwamba. On the other hand, the defendant's . ,p0.sition was that the plaintiff was never appointed Senior Chief Mwamba for him to be .... --I. II',•. in.line to succeed the1afo Chitimukulu, insisting that he just i!llposed himself. · - On the contention of the defendant that the plaintiff was Chief Nkolemfumu·at~ e-< ~•,r.• ·•~. time he aspired to be Chitimukulu an~ not; Senior Chief Mwamba1-.01fti+orf,his 11:\d~on1-=~~<'tt'"~~rr ,thatthe 1plaintif.f.never got on well with the late Chitimukulu, the learned trial Judge took _, j : , I.. . . i.,;; :- ,th~.-,{ie.w that theil:a:te Chitimukulu's actions to purport to demote the plaintiff from Senior ChiefMwamba to Chi~fNkolemfumu and appointJh~ defenqant ~. S. th.~ rightfu,LsJJ.~~~ssor to the throne of Senior ChiefMwamba was motivated by malice and hatred . . The learned trial Judge found that the recognition of the plaintiff as Senior Chief . ·- •1 Mwamba by the President was not an act in error. He reiterated his earlier position that - -~~ 613 the "ladder procedure" was well intentioned and was generally acknowledged and recognised as the Bemba customary law of succession (see page 101 of African Political Systems by M. Fortes and Evans-Pritchard) as it was proper, honourable and peaceful On the basis of the foregoing reasoning, the· learned trial Judge declared the .., ..... ::; ll.t'· , · ;plaiJJJ,iff, being':..!.$.e!i,or Chief Mwamba, as the rightful and legitimate candidate for ·0·•n:~ : ~s_qr,:rnl"ncy. ,to, :the,,Paramount Chief Chitimukulu's throne and dismissed the counter'-·:.,,~ claim of the defendant. seven grounds of appeal. These are outlined below as follows: - 1. u • • ,-The• learned trial . Judge ~i'1.flireded _himself by finding that ,.,succession to Chitmukuluship is automatic by "ladder climbing" from Chief Mpepo to Chief Nkolemfumu to Senior Chief Mwamba and to Paramount Chief Chitimukulu and by finding that the Paraniount Chief-in:.:council is bound to appoint foll_owi_rig the laddCL 0,s;rstem regardless of personal conduct and leadership· qualities of a person who would otherwise be entitled; ~~-~t<'~~~P.":~ -~ ~ , ._ ... ·:.• .. : · · 1 · . ·.·:;_·_ Jf:,,.::r;;-;- ._._ .. '··:.' : . . ., ......... - ·-~ -~~ ' 2. · ,...-,.-- · Tlie · learned·· trial Judge misdirected himself by finding that I - - - · - - - i i•~~-~ r:esident,F .• T. T. Chlluba rightly recognised the plaintiff as Senior Chief Mwamba following the ladder procedure of Chief Mpepo, Chief Nkolemfumu, Senior Chief Mwamba and Paramount Chief Chitimukulu thereby making the role of the appointing aulhorily, • I. namely, the Paramount Chief-in-council, irrelevant; I t.t • ,. 3. The learned trial Judge misdirected himself by finding that there was no basis for Bashilubemba (the Royal Electoral College) to deny the plaintiff his inherent birth-right of automatic ascension to J9 the throne of Senior Chief Mwamba and then to Paramount Chief Chitimukulu; 4. The learned trial Judge was wrong at law to find that the plaintiff is the rightful and legitimate candidate for ascendancy to defendant~s counter-claim; - The learned trial Ju·dge ,vas wrong at law by fafling fo find that the -· - - 5. 1"-'~fcndant having l:>ee.11 appointed Senior Chief Mwamba by tb.e ':i<~f.r.', · · : ... i,J,>pr.aJUouut Chief-in-council in 1997 was entitled to be recoguised -:~1;;,tn.,.c", --- . . as such by the President of Zambia pursuant to Section 3 of the -- ---~ - ~ - __ ... Cl1iefs Act, Chapter 287 of the Laws; .... ~ •T he learnea trial Judge was wrong at law by finding that tq;"f,?!:-"' '-!-f,~~'Jlh -~7-11~ ,,,;SUC'1_eed as , Paramount Chief one has to be a male, come from matrilineal---side--of--the family and must be genealogically---seni-or----- · ~metn:bcr of the family and by failing to find also tbat the person must be of good behaviour with leadership qualities; and 7. ,. ..,The learned trial Judge was wrong at law by finding that the Paramoun! Chief's action to purport to demote or t9 r,;fuse to recognise the plaintiff as the rightful successor to the throne of Senior Chief Mwamba when he was Chief Nkolemfumu at the . rna_tetial time was .motiY-atc.cLby malice and hatred. · ... , ·· :,,,;:::; ... :w~1·s~o1"'~ ...'. Iili -:...• Both the defendant's and the plaintiffs legal representatives filed their respective . hc;!ads of argument on which they relied. The heads of argument were reinforced by oral rrn sub1nissio11s from both si<les. We note from the heads of argument of the defendant that ground fiye Js covered by ground two while ground six is covered by arguments in . .. . ground one. So, in real terms there were only five grounds of appeal that were argued in the heads of argumenl. aro On the other hand, the heads of argument of the plaintiff show that grounds 1 and 6; 2 and S; and grounds 3 and 4 were combined and argued together. Only ground seven I , JlO was argued separately. However, what is common to both parties is that when it came to - - - -·-·-··· ·-· - - ---·- '" - - oral submissions both counsel submitted generally and not in the order of the grounds of appeal as indicated above. .:. Sr t.. Jn:.support·of ground 1, Mt: Zulu, . State Counsel, submittea in the defendancs· heads of argtl111~nt that there. were two contta~ting positions chcU'P.pioned.by the plaintiff . ~ .stm; , ,.:w,Cl'\'fillth th~t®ffilld~tiiµ the cqmt below. He submitted that the positi_()n~of the plaintiff•and- Jt({~~;-;~[:i'r;,fh~RH-h.i:s- witnesses was that succession to Chitimukuluship was automatic by -following.the , , -,:J ;-.:,_r~d~J-\ &ystem1Qf succession from chief Mpepo to Chief Nkolemfutnu t~ '~-ehl~rChief -~ ~ba a~~l}n,to E~ ount Chief Chitimukulu. According to the State counsel, the - : pro:w,_0sition by the plaintiff was well supported by the authors, M. Fortes and Evans Pritchard, in their book entitled African Political Systems at page 101. On the other hand, Mr. Zulu, S. C., submitted that the position of the defendant and his wi~nesses in the court below was that succession to Chitmukuluship was not autoinatj__c: but at the discretion of the appointing . authori(y~ knownas--Bashilubemba . - - - - -~ ·::;~- . -~According to the State Counsel, the foregoing proposition was well supported by the •, ,,c;:,r.o'l!~-•P-0 evidence of DW-1 and the works of W. V. Brelsford at page·,92;:df ·a:i,olJki~ atl~'ffh~,..,+ .... wi',, ,,_,;, ' . . -Succession of Bcmba Chiefs - A Guide for District Officers. .,.·•---~~ .or1-,;t, ;,,1;,_, " . • ,,.~.,,., Submitting in favour of his client's proposition, Mr. Zulu, S. C., stated that the ,:;- learned trial Judge felHn error when he preferred the automatic succession system to the ,:.,11:i 1,, non-automatic succession system despite the conflicting authorities on the point. To that ,,extent, Mr. Zulu, S. C., was of the view that the plaintiff did not prove, on a balance of probability, that succession was automatic. • --r-, . J 11 To prove that succession was not automatic, Mr. Zulu, S. C., quoted many - . examples given in the late Chitimukulu's letters. In particular, Mr. Zulu, S. C., referred the court to the evidence of DWI who testified that the late Chitimukulu himself, Mutale - - . Chitimukulu. :b,s• .. ::;. 1"'' ;1.-J...01-40.uncili~,t'th"Efute.:,~ ®tra. Mention of Section 3 of the Chiefs . Act. •In the same vein,-.,,~~~ . rr~,- r1i:he.,submit.ted~that it was not correct to say that the plaintiff was entitled, under Bemba _ _ - - - L . ~:.'trt · ~.·r-.,.-- .. . . customary law, to succeed to Chitimukuluship when the custodians of the same customary law had disqualified him. ,He pointed -out that there was no dispute at trial that the appointing authority of chiefs subordinate to Chitimukulu was the Paramount Chief-in-council and_ not the President of Zambia or indeed the High Court of Zambia. In his v iew;•ithe President - · r,Ql!" . L..~l<l felt that.customary law was not followed . . . On, ground three, Mr. Zulu, S. C., submitted in the heads of argument that bi1thright was simply not enough -for automatic ascension to Senior Chie:f1t,,1,wamba and mIB• later on to Chitimukulu; As far as he was concerned, the candidate _must be equal to the onerous task of performing the chiefly duties as Chitimukulu. -· .. ~ - - J 12 C_oQllllg to gro~c:l . f cmr, it w~ CQntended in the he.ads of argument that the rightful and legitimate candidate for Chitimukuluship was the defendant and not the plaintiff. Mr. Zulu, S. C., took this position because the latter, unlike the former, was not appointed by the hereditary councillors, Bashilubemba. On. gr.ound seven, Mr. Zulu's submission, based on the defei'idant''s heads of Jl,p:·· •• ;~:;:'.f"/•f_.· 'ChitimuJmlu was mdtivated by maliee '.arid hatred wh.en he refused to appoint or prom~ir:·. i I ~n. ·: '•' ~~-~~ '-· Qi~ pJmgtifi._to _fu..~ pO~_l~(>n of Senior Chief M wamba. To justify the action taken by the'.:.~":'.\\ ' .. · \{;\,~: ·"fi'-~•~i1' l \w1;. .. r~1:.., 0 ~_,:-} ,-- late ChJ~\l~tJlµ, h~~,referred .. to the evidence of DWI and comriiented that when --~ -l1i:' plaintiff di,%>,b.eyed the order to move from the palace of Senior Chief Mwamba to that Qf · ... -- . . .= . -~\; u·. ".'.. ~ ~ Chief Nkolemfumu, he (plaintiff) could not expect promotion, in view of his insolence, from the Paramount Chief-in-council. In ·rus oral submission; the State counsel repeated quite a 'few things· that were already in the defendant' s heads of argument. But of significance was the issue of -procecfut"e.'1vfr: ·z1. Hu, S. C., emphasised that succession. to Chiti.mukuluship was not the , a.ppointing authority, if we were of the opinion that the'~pFocedure under the ,.~ " -~~ • I .vi.: customary law of succession of the Bemba people was not followed. . . As far as Mr. Zulu, S. C., was co11cerned, it was a misdirection for the learned trial .tp.dge to put more value on researchers' works than ori the wisdom of Bashilubemba~ _th_at ~e law on Bemba ctistoms and traditions, in relation to succession of Bemba chiefs, was what the Bashilubemba said and not the researchers . ·~- - . ~ ..... J 13 of argument, Prof. Mvunga, S. C., as co-counsel of the defendant, submitted, mainly, on who the appointing authority of a successor to Chitimukulu was. He submitted that there was common ground that- Bashilubemba formed th.e only traditional council with authority to appoint a successor to the vacant throne of Chitimukulu. For this reason, , !•,c,ul-,,.,.,,. .. ,-:- court process, commission of _inquiry or through recognition by the'-P-res-iden.t. . : .. ; inuui"n {11 ; . . ,i"u.v : 1 , tm'l:m..\..~~. Airp1or~. Cor,-p,,qr:t.ti,!Ml, ~-case founded on the pri1).ciple of judicial review and where w~ :~~fff.?tI~~t.;tlie court CaJmOitJnqui.re into the merits or demerits of the decision made by a ... .., J. ,,.bqgy with the power to make the decision. Prof. Mvunga, S. C ., submitted that the decision of Bashilubemba would not be attacked on any grounds of illegality, impropriety or unreasonableness in the Wednesbury sense . . .. He submitted tnat Bashilubemba- gave - reasons for not accepting the candidature of the plaintiff as well as that of Chief Chikwanda and that seniority fri itself was ~ot the only ~riterion but antofi~l6rfe1't)ftliem. •~~. F,,,;.,)~y..,..ij~hilubemb.~.lmrJ. that if the court was .. agreeable, then- the-~one-h..l~ionAhat the _ _,,.t!Qi-Vitl. Slt .defendant was Chitimukulu became obvious. He attacked the publications relied on by 1•"$:~rn.,i~.,_..,,. · .. . . ' . ' . . .. the trial court, saying that they were too old. As far as he was concerned, the statement by i.: ~ ashilu bemba, ,_in1:.:relation to the outcome of the selection process, was the latest and ' could not be substituted. Jl4 On the claim that at the time Bashilubemba cony~ned tli~ rrieetirig to select the new Chitimukulu the plaintiff was Senior Chief Mwamba, Prof. Mvunga, SC., argued that the President of Zambia had no power to recognise him as such when the appointing 1_ .. , ..:.\..::~":,.,:,_;!~l,J.;th_gfityJ.ll-nd.er Be111pa customary law had noj done sc,. In con"lusion, Prof. Mvunga~·., . :·:-. . , _·: ··.. SC., submitted that it was much .safer to leave the issue of succession to Bashilubemba as · customary law of the Berhbas. ~,, ,,.,.,.~. :J;u l·•·":'•S: g.-sr8l}PJAH!~9~t4e, plaintiffs heads of argument, in relatjon_.~~·:gi:ounds: one ancj , i,,,wi:f"[ tiim:t~~i-~that the learned trial Judge did not misdirect himself when he made a finding of fact ,.: """: . ., .:~ c~ll~ effect that successio.n to Chitimukulusl}ip was 1mtop1atic by ladder climbing from Chief Mpepo through to Paramount ~hief Chitimukulu. He submitted that the learned Judge's findings of fact were well grounded- and were the subject of critical analysis of the ~uthoritativ~ t~xts by w. V :· Brelsford on one hand and M. Fortes and Evans Pritchard on the other. Mr. Mutale, S. C.;subftfitted'tbat 'as -··= :· - ft1t 1l The State CoW1Sel, however, conceded that the rule of ladder climbing was not ,~rabsolute as there had been some appointments that were made outside the ladder system . . '. . On some of the corre~ondence relied on by the defendant anq his counsel, Mr. Muta.le, -,'.' ·: : ' ··· ·: S. C., submitted that the correspondence emanating from the late Paramount Chief, J 15 Chitapankwa, the 11, should be disregarded as most of it was not ~igne4,, 1:tg<l~~~q Qr produced in evidence by any of the witnesses of the defendant. On grounps two and five, Mr. Mutale, S. C., submitted that the issue canvassed in He submitted that there was need for the defenda1it to join the State-at trial if it were his :n-~.~~ui.p,jg.we-t\9,11 to ill}~~l,l.the recognition of the respon<lent as Senior ChiefMwaniba .tfl!~M{~.{.' . , Hlllf~~· .:--:.•: ~~.\~ Hiiap,i,,to grounds 3 and 4, the State Counsel submitted that the learned triai ·, ·;_· , lQ)cl:-;l~roL~,::uiet-K.6'W8Q._pIOpeJ\¾. {9pp.d .that. 1!}~x~:was no basis for the Royal Electoral College to de1iy tlie :;'t t'.;..'"'t_: · ' .;..iot.i,: - __ ·, G-):).itiqmku.lu. WL~h regard to the evidence of DWJ, the State counsel submitted that it wi.'s<t. J~'lJl.'f:. · .. ~,~, ., ... , _ ·: 1:r_ 'l i 1 :,. .-._, :.~'(-~l/•i ll~2W-Hµmbent upon_ th_e ,1/aditi_onal c;oW1cillors to s_how th_at their decision W,;\S not 1notiv~tec.l by malice or capricious factors. He quoted from the evidence of DW3, a member of Bashilubemba, who testified ... --_:- : . ·that one of the reasons for disqualifying the plaintiff from succeeding th~ . late · -.:/Chitimukulu.---was because.-he w.as the son in law of.the late Paramount Chief. Mt, Mutale·, nr-. .,., ·- - .. -Ha~:.c.~,~µb~~~ that the reason was both untenable and caprieiobsr-Rif'arguoo'that it'was ':·i'i~;rn'.~~~tcni : ;:!ii'd:;~ 11y1ei;:y wellJ,rn.o~ fact tl:i~t the plaintiff and the late Chitimukulu were brothers and that!!.!!!.! ·11 the former could not, therefore, be the son in law of the latter. "· · · Rega:reing ground seven, the State counsel submitted that the learned trial Judge . properly :found that the action of the late Chitimukulu to purport fo, demote or refuse to , ~ecQgnise the plaintiff as the rightful successor to the throne of Senior (;hief Mwamba was motivated by malice and hatred; that in arriving at the decision to refuse to recognise J 16 the plaintiff, the Paramount Chief-in-council never accorded the plaintiff a hearing before the decision was made. ·rn his oral submission, . Mr, Mutale, s. c., repeated most of the issues covered in t.."s· . ·· _7:E= :•' $~ _ _heads of argumentHo~eyet~ he·:a,cJµiitted thc!-Phe works of Y{. Y- Brelsford·and M. ~.:··· ... ·:. ;:_., .. : :·· • -- ::. · : _, ;, . Fort~s ~1.d . EYatis. :P~~t~~ard · wer_e ol~ _even though they were a corr~ct: reflection· or the -· · " •_, 1 r,• _ . , . ,::; 0.<n.~~P'\ba ctist,QP}fll'Y.sltlo/" ,Q,t1m~~~ssion. The State Counsel reiterated his submission that.• ,~:'/: \ ~~~J!lsl\Jruft&Jhe l~~f complaint by t11e-1ate ~hitimukulu, we}e ~ot pioduc;ed · ~ -' the court below. Thei;~. WM;:general .agreement by the State counsel from hoth sides on the issue that there were no agreed bundles, no inspection and discovery. While it was acknowledg~ that the minutes were not produced, Mr. Zulu, SC, submitted in reply that ·D\\13, a Bashilubemba, who attended the meeting at which the defendant was appointed •••• 1•,· ·~ · ; ~ 9)C"J,• •~ ·. ': :. •. • • • ••"• ·:•, ':·- ·c .. Chitimukulu,:testified to confirm the existence of.the minutes. ::,; • · -. , •• '•', ' _. ":; • . , , • ',. . On the issue raised-_by- Mr. -Mutale, SC, that the plaintiff was noH~ea!i'dswhen he -" 1i'.a:le: 0 :-~,, _ : .:,':i. ·:.c W;!l_S -~eqJ.,~ted from S..~IJ.,tpr Chief Mwamba to Chief Nkolem:fumu, Prof. Mvunga, SC :·.:.,:,::,; .. ,, . . submitted in reply that on the authority of S. A. de Smith's Judicial Review of Administrative Action, 3rd Edition, at page 168, it was not in every case that an _:~~::t:<:~;_) --:. •i,·: ._ : opporlunity,:to be heard was given. Prof: Mvunga, S. C., further submitted tllat Bashilubemba were not sitting to adjudicate on a matter and so they were not obliged to ... - J 17 call him. As far as he was concerned, the plaintiff knew that he was not wanted by the Bashilubeinba. We have -carefuffy considered the evidence contained -iri -the record of appeal m,·-· - - - - - .•. t-(~lllQu , of tf.ie~ State ccnu!s¢1; ~lL of whjch have bee;i;i i:eproquced in .. extens{q-, Frorn the eviden9&_ --~ .,,m~, agd sul?_ruj~sions, our c0nsidered view is that although the grounds of appeal are seven , 1 ; .. ::-. :. ·,s·::·· :-· ,~.: ~ -e·-issucs. th~~~~~ are actually three_. The issue of recognitimrof the--plaintiff as-·s·eninr~-- · - -:- - 11 ~~i,.1.-~, C,Nei ~Mwam!Jfu.\H:'..:J~~$i9,~qt,_9r the lack of it when it crune to..the defendant is by the- . 'l ·-· ,, . . -~ ... ;,..., ' way. _ . : _ : • :• : : I I • " In .the, event, we shall deal with grounds one and six together because the two , P,grounds of appeal raise t}le. issues of procedure and qualifications, if we may say so, for ascendancy to the vacant throne of Chitiinukulu. Similarly, grounds two, three, four, five and sevep . will also be considered to.gether in that they raise the. issue of the strategic importance of the office of Senior Chief Mwamba in the appointment of a Chitimukulu. We shall begin with the issue of recognition of a chief by the President of. Zambia s~ye~ '1!\qltp.en gr~\}Aq,~_ one and six in that order. We have no difficulty in acceptmg.,the argument of Mr. Zulu, S. C .• and Prof. Mvunga, S. C., for the defendant, that a chief is selected ,or appointed as such by the people of the community the chief is to superintend over in uccordancc with the customs and trauitiuns of that community. It is not the duty of the Court, as the learned trial Judge seemed to i11.1ply, to choose or impose a chief on a .··· : community. J 18 In the case of the Bemba customary law of succession, it is generally ag_r(:_ed by the parties that a chief below Chitimukulu, it can be Senior Chief Mwamba, Senior Chief Nkula or indeed any other, is chosen or appointed by the Paramount Chief-in-Council. When th~.~sb.oice of a . Chitimukulu is in issue, the body mandated to make · thf .s.,:,,:: appointment is known as Bashilubemba. The composition of the _two bodies, including the necessary quorum for the transaction of business, was not part of the evidence . . , .,, - ,B.esid:es~,VD,1,at the evidetic~· failed to establish is the role of Chandamukulu, the Queen . ;11.,nH11,;11-~Motil.ef2M_ot!i~rr(Jt1cludjng,M1i~Jffi$lfumu, the Queen Mother for Chinsali side), iri the sefect1~ • .. ,.- '.,., · :. , ,. process of Chitimukulu arid the chiefs below Chitimukulu '.iwPric,e.. an appointment is riiade, there was no adequate evidence outlining"ilie ,, . . process leading to the recognition of a Bemba chief by the President of Zambia. We note, I '1l ' • " however, that under Section 3 (2) of the Chiefs Act, Chapter 287 of the Laws, the legal position is that the President of Zambia shall not re.cognise a person as holder of offic·e of chief unless he is satisfied that such person is entitled to hold the office under African - · customary law. What is African customary law, in our context, has not been defined . .!,. '::.+.::~~J\Ci:;gr_'t'::: 'However, for our putpb~es we :snatf'rt~ow it to Bemb~ Mtomfu:-y law oI succes'§fcrn?''~@-1-:;:.;:;'o~v.:';~-~~r. . :,The definition of "chief' under the Chiefs Act is 'a person rccognised·under--1he .. ,, Act as the holder of an office specified by or under Section three. ' One of the orrunary me,a,rupgs of 'reqqgnise' relevant to our situation is, according to the Oxford Advanced ltipl\fner's Dictionary, ih Edition, to accept and approve of somebody officially. What it means is that when someone is chosen as a chief and the President is satisfied that the J 19 person was chosen in .accordance with the customary law of succession of the commu_nity he (the President) will accept and approve that person's appointment as a chief officially. When-the recognition is· conferred the person so recognised·as-a-chief is entitled to --._ :with9l-'.awo uponthe-,withdrnwal of the recognition. With recognition, the chieffa elevated •- - to some status hitherto not enjoyed by him. ,,,_.· :_., ,,,s,'"'"· ' .· . .-;. Coming to grounds_two, three, four, five a:nd seven, we note that the evidence of •·a,i:c:;·1, ·1se11~i~,,th$iRict\iU. L<Mbat it isp~t-fategic importance to be Senior Chief Mwamba, as that gives the -'""·'!.'/ - ,~;~i , ...:,,, .. holder~JnS:;.1;.asy rout~. to Chitimukuluship, the defendant's evidence does not come out forthrj,ghtly. and the reason is simple to find. If he agreed with the position of the plaintiff it would have amounted to endorsing the plaintiffs claim to Chitimukuluship . . _., " ,,_ However, from his own evidence and the suhmissions of his counsel we were able tq,pcrccive the defendant's desire an<l that of the Paramount Chief-in-council to make him (the defendant) the Senior Chief . Mwamba. There were attempts by the late ;,.:- ::. Chit.imukt-'ih'.i'"to·remo_ve the-pfaintiff"fi'om the position of SenID't'.·1.d)h1e""ftM\Wffiba 'fililij~- ;·;_· ,y,,, t~~,ri~ftndantr~hi;iie;1but the attempts failed apparently because the plaintiff--had-.alread~ ·- · ' been recognised as such by the President. . , , . ,. In that . .r~ma,ct, we are of the view that the crnsade against the plaintiffs .. : ,.;r~~qgnition by the President as Senior Chief Mwamba was to emphasise the claim of the·•t 1,' defendant to the throne. Had he succeeded and because the defendant was in good books with the late Chitimukulu, the argument that a reigning Senior ChiefMwamba had better J 20 prospects of becoming the next Chitimukulu would have been strongly canvassed. In fact, there would have been no dispute warranting litigation in the first place . . ~--- -· .. --From-the foregoing obser-vations, it eannot be denied that the f)OSition of Senior- · fji.,L .,.1: -;: , . Chief. Mwamba _is ofy,~ny• strategic importance in._deciding whcf the next Chltimukulu __ ... ·_ · _ _ .1 1~-it'1>1 :, • should b~, altgo:ugh it may not be 1J].e on}y criter-r.on. • . ,,rou,i<; •·1 ;;;, 1:\,s we have al{eady indicated above, grounds one and six relate to the procedure : "~ T.,;.1:-. ·C~µkuluship is a matter best left to Bashilubemba to decide.: • .,. 1 . , ,1t::,,;;, \;. Jq¥•,1,eY..icJ.@..ce,_of. the plaintiff is that a Chitimukulu is appointed following the !f1:t~1_n•,'.· ,,,1 ...... principle,of ladder,.climbing. By this principle, a candidate, on the ''Kasama "side, must start as Chief Mpepo, move to Chief Nkolemfumu and then to Senior Chief Mwamba l}~fqre he ~~ 1become Chitimukulu. In the process of ladder climbing; the plaintiff also brought to our attention the issue of seniority and stated that a nephew. cannot supersede an uncle as was the position in this case. - · •"· - - " · .r1,:_:.~~~~: ··'· While the fotegoilig ·proposition may be true in a normal situati'd'f:rt~lm'!Vidence of .;hor1,~,:~w!:;1":• ' ' ' ·,nJ!hfu,defenq~ti~~ out,,a situation where Bashilubemba may not strictly follow the .. ·::~, principle of .ladger. climbing and seniority. The example of 1he,. Jatei,Ghitimukulu, who · .,.i.tHfiHV. · .. ,1 held no chiefly office before his ascendancy to Chitimukulu, has not been disputed and ·.. we are glad that the plaintiff. s counsel conceded that it was not a must that ladder ,~~ h(, 1 climbing must always prevail. J 21 As we write this judgment, we are aware that the defendant has, by statutory - instrument, oeen reco gnrsed--asPatamounfChief Ch1tinmkulu of the Bemsa-people by-Che ~·: -~ ,;,::; -~ ~~ - ~"--•:. ? [ • ,Presidsi_nt..-&'W'tl.gla.ffirmed-the ·positfon--=that lt1 the choice of a-G-hitimukulu Bashiltil5'~m ba- ~ :.-. --=_::. -- C . :. have a .fatafsay: that they are not restricted to the system .of:fadder climbing and ;-;s~ot. Qrity, we do riot think that this is a case that merits sendin$ back to Bashiluoemba as - - - - - - - -· - ,. -~1,, _-,~_: - , .. l'!i~avgued inthrualter.nat1v.e:-by Mr. Z ulu C::Xtlie c1rciimstances, the defendant is-the duly_ t<0¼1tasl.'.1H11,>0r:., ,. appointed Paramount chief Chitimukulu by Bashilubemba. ,_: i!.!~c.anpeam-r . Fromewn:~~W.:-eJiliu\:lk~1s~id, we would allow the appeal for the reasons givena6'ove ~:~ti'll~m.;,; i- -,.,.-,, .. ,_ana,,,~t,·as_ide the judgment of the lower court declaring the plaintiff as the rightful and tl.!-:; t II iw f - - .; "r ah1gitimate candidate, for ascendancy to the throne of Paramount Chief Chitimukulu. There will be no order for costs as each party is expected to meet its own costs. ____ !)~!\f, Lewanika. _,_ ... DEPUTY CHIEF JUSTICE ~ SUPREME COURT JUDGE - . ~